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[2018] ZAWCHC 117
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Stacey v Supercare Services Group (Pty) Ltd (A380/2017) [2018] ZAWCHC 117 (13 September 2018)
THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION, CAPE
TOWN)
Case
No: A380/2017
Before the Hon. Mr
Justice Bozalek, the Hon. Mrs Justice Fortuin
and the Hon. Mr
Justice Nuku
Hearing: 30
July 2018
Judgment
Delivered: 13 September 2018
In
the matter between:
PAMELA
GAIL
STACEY
Appellant
and
SUPERCARE
SERVICES GROUP (PTY)
LTD
Respondent
JUDGMENT
BOZALEK
J
[1]
This
is an appeal against a judgment dismissing the appellant’s
claim for damages following injuries which she suffered after
slipping and falling in a shopping centre.
[2]
The
appellant brought the action against the owners of the Canal Walk
shopping centre
(‘Canal
Walk’
or ‘
the
Centre’
)
in Cape Town and the cleaning services company which was contracted
to provide cleaning services to the Centre. Before trial the
appellant withdrew her action against the owners of the Centre
leaving as the only respondent, the cleaning services company
(‘the
respondent’
).
By agreement the merits were separated from the quantum and heard
first. The appellant herself testified and she called the evidence
of
a loss adjustor who testified mainly about the adequacy of the
respondent’s cleaning regime. The respondent led the evidence
of Ms Julian Kruger, its manager at Canal Walk and also a Mr Robert
Cooper, the respondent’s Western Cape general manager.
It also
led the evidence of an expert insurance loss adjustor, Mr Brian
Wright, who investigated the incident when the litigation
commenced
in order to advise the insurance underwriter whether there was a risk
of a successful claim. This required him, in turn,
to investigate the
adequacy of the respondent’s cleaning regime.
[3]
In
brief the appellant, who was 53 years old at the time of the
incident, testified that she had lunched at a restaurant in Canal
Walk and was walking down one of its walkways back to her place of
work when she slipped and fell heavily. She did not see, nor
was she
able to identify, what she slipped on. The respondent admitted in the
pleadings that a liquid substance had been spilt
on the walkway at
the point where the appellant slipped and fell. There were several
reports from second-hand sources that the
substance in question had
been a spilt ice-cream. Much of the evidence in the trial dealt with
the exact nature of the cleaning
regime implemented by the respondent
at Canal Walk at the time in question and, whether, comparatively
speaking, it was an adequate
cleaning regime and whether it had been
adhered to on the day of the incident.
The
pleadings
[4]
In
the particulars of claim it was alleged that the respondent was the
appointed cleaning contractor at the relevant time and was
responsible for the maintenance, safety and cleanliness of the
Centre; further, that it was obliged to take reasonable steps to
protect the safety of members of the public who visited the Centre
by, inter alia, ensuring that the floor of the Centre was clean
and
free of any spillage rendering it slippery.
[5]
It
was further alleged that the respondent had been negligent in that
it: permitted a spilled liquid substance to be present upon
the floor
rendering it slippery and dangerous to the appellant; failed to take
any or adequate measures to remove the substance
from the floor;
failed to maintain the floor in a clean, dry and reasonable state of
cleanliness and failed to devise and/or implement
a cleaning regime
so as to ensure that the floor of the premises was maintained in a
clean, dry and reasonable state of cleanliness.
[6]
The
respondent admitted in its plea that the appellant had slipped and
fallen but averred that neither it nor its employees were
aware or
could reasonably have been aware at the time of any wet and/or
slippery floor. In the alternative, the respondent pleaded
that the
appellant was contributorily negligent in that she had failed to
observe the area of the floor across which walked.
The
Court a quo’s findings
[7]
In
dismissing the appellant’s claim the Court
a
quo
held that there was no direct evidence before the Court that she had
slipped and fallen on the liquid substance which the respondent
had
admitted was on the floor of the mall in the vicinity where the
appellant had fallen. Noting that the appellant sought that
an
inference be drawn that she slipped and fell on the liquid substance,
the Court found that this inference had not been shown
to be
consistent with the proved facts or to be more probable than that the
appellant fell for a reason other than that she slipped
on the liquid
substance. In this regard the Court
a
quo
noted that the appellant wore plastic Croc shoes; that she had been
walking fast immediately prior to falling; and that she had
previously had surgeries to her knee and back. The Court noted too
that CCTV footage showed approximately 25 people walking across
the
same area in the two minutes before the appellant’s fall
without mishap; further, that no additional details as to the
nature
or extent of the spilt liquid substance were proved nor its precise
proximity to where the appellant slipped.
[8]
The
above findings put paid to the appellant’s claim but the Court
reasoned further that, even if it was incorrect in finding
that the
necessary inference could not be drawn, the appellant had failed to
discharge the onus of proving that the respondent
ought to have
foreseen the possibility of its conduct (or more accurately its
omission) injuring a person in the position of the
appellant and that
it failed to take reasonable steps to guard against such occurrence.
In this regard the Court found that the
evidence supported the
conclusion that the respondent had in place an appropriate and
adequate cleaning regime and that it adhered
to that regime; further,
that the respondent took the necessary steps to guard against and act
upon the potential hazard caused
by spillages and provided staff
training and supervision in doing so. Nor was the Court persuaded
that the adequacy of the respondent’s
cleaning regime was
compromised by the limited number of staff employed as cleaners, the
fact that no radios were provided to such
cleaners on duty or the
size of the walkway area allocated to each cleaner to clean during
the day shift.
[9]
The
Court also found that the respondent had foreseen the harm that might
arise were a spillage not to be identified and cleaned
but that it
enforced its cleaning regime which included the implementation of its
protocol for spillages to minimise the risk of
such harm and in so
doing took reasonable steps to guard against and act upon spillages.
It found that there was no evidence of
the respondent being negligent
in its failure to detect the spillage nor that the spillage in
question had remained undetected
for an unreasonably extended period.
[10]
Finally,
the Court found that the respondent’s conduct had not fallen
short of the standard required in the circumstances
which were that
the harm to the appellant was not reasonably preventable and adequate
systems were in place to prevent spillages
and remove them when they
occurred. It found that there was no evidence that the respondent
knew or ought to have been aware of
the presence of the spillage and
failed to take reasonable steps to remove it at least with reasonable
promptitude.
Grounds
of appeal
[11]
The
appellant advanced three main grounds of appeal, namely that the
Court
a
quo
erred and misdirected itself in finding that:
1.
the
appellant had failed to prove that she slipped on the liquid
substance on the walkway as opposed to having slipped and fallen
for
any other reason;
2.
the
respondent had in place an appropriate cleaning regime; and
3.
on
the day of the incident, the respondent had adhered to its cleaning
regime.
[12]
Before
dealing with these issues it is appropriate to briefly set out the
evidence given by each of the witnesses.
[13]
The
appellant testified that she worked in Century City near Canal Walk
and visited the Centre virtually every day. On the day in
question
she lunched at a restaurant and then walked back through the Centre
to work. The route she took was from Stuttafords towards
Pick ‘n
Pay along the lower mall. As she passed a shop called Zoot she
slipped and fell heavily. She was unable to move and
it later
transpired that she had fractured her left fibula, dislocated her
left knee and sustained torn ligaments. As a result
of these injuries
she eventually underwent a total of 11 surgical procedures. The
appellant had not seen anything on the floor
which could have caused
her fall but afterwards she had noted that there were traces of a
liquid substance on her clothing.
[14]
It
was common cause that the appellant was wearing Crocs at the time of
the incident and was walking at a brisk pace. On two occasions
when
the appellant returned to the Centre thereafter she noted spillages
of what appeared to be ice cream on the floor. She reported
the
spillages to cleaning staff and took photographs.
[15]
The
only witness called by the appellant was a Mr Charles De Meillon, a
loss adjustor appointed by the appellant to investigate
the
circumstances surrounding the incident. He testified that the Canal
Walk shopping centre is located in Century City and comprises
more
than 400 000m² of office and retail space. It has more than
400 shops and 48 restaurants and food outlets. The walkway
in which
the appellant fell and which was being cleaned by one cleaner at the
time was approximately 200m in length and varied
in width from
approximately 12m to between 30m and 40m. Kiosks and other
obstructions in the walkway hamper visibility in the area
requiring
cleaning. On a week day in February 2017 i.e. some five years after
the incident which took place on 12 January 2012,
Mr De Meillon
carried out an inspection of the site where the incident took place.
He noted there was a high volume of pedestrian
traffic in the walkway
and observed one cleaner cleaning the walkway from Stuttafords to
Pick ‘n Pay. The cleaner focussed
her attention on cleaning the
floor directly in front of her and did not shift her head to check
her surroundings. On the return
trip back from Pick ‘n Pay to
Stuttafords the cleaner emptied out nine refuse bins, emptying them
into one large bin which
was then taken to a service alleyway. During
his hour and a half long inspection, Mr De Meillon observed a
cleaning supervisor
on one occasion but that person did not
communicate with the cleaner. Mr De Meillon expressed a view
regarding the adequacy of
the cleaning regime but admitted in
evidence that he was not an expert in such matters and therefore I
will say no more in this
regard.
[16]
Ms
Julian Kruger, who at the time of the incident was the Cleaning
Contract Manager for the respondent at the Centre and the appointed
Health and Safety Officer, testified on behalf of the respondent.
When the trial took place the same cleaning programme had been
in
existence since 2007. A Service Level Agreement (‘the
agreement’) concluded between the respondent and the Centre’s
owners in 2010 stipulated that the respondent had to provide a
minimum of six cleaners and a maximum of 12 to clean the floors
of
the Centre. The walkway was one of eight similar walkways at the
Centre, four on the ground level and four on the first floor
level.
The cleaning programme for the walkway in question was that the
cleaner would start at Stuttafords and walk and sweep the
area from
there to Pick ‘n Pay. On the return trip the cleaner would
empty the dustbins and waste and take this to the service
alleyways.
On the second round trip the cleaner would return from Stuttafords
cleaning direction boards, dustbin holders, shop
facades and other
low level infrastructure. On the return trip the cleaner would
continue to sweep and clean. This cycle would
be repeated
continuously. Ms Kruger conceded that this was a lot of work for one
cleaner to carry out over a 200m long walkway.
A total of eight
cleaners were allocated to the upper and lower level on the day
shift, four of them on each level cleaning a walkway
similar to that
where the incident took place. Eight cleaners were assigned to a
total of four toilets with a further two cleaning
‘
back
passages’
.
There was one cleaner at each of the four entrances to the Centre and
five cleaners at and around the food court where most of
the
spillages were anticipated. A total of 57 cleaners are on duty,
covering both the upper and the lower level of the mall. Additional
cleaners were employed over the Christmas holiday period until the
schools reopened which, on the occasion in question, was the
day
before the incident.
[17]
On
the day of the incident Ms Kruger had been on leave and therefore
could give no direct evidence as to what happened. Her position
had
been filled by a Ms Solomons who had since passed away. The
supervisor on duty that day was a Ms Louise Barnard whilst a Ms
Cwaba, who had subsequently left the employ of the respondent and
passed away, was the cleaner rostered to work the afternoon shift
on
the walkway on the day in question. The respondent operated a seven
double hour shift programme (excluding a one hour break),
the first
shift commencing at 7am and ending at 3pm and the second shift
commencing at 1pm and ending at 9pm.
[18]
In
Ms Kruger’s experience there had been up to three spillages
during one shift in one section of the walkway i.e. one quarter
of
the walkways per level. She was also aware of between five and eight
cases of injuries sustained by visitors to the Centre when
they
slipped and fell as a result of spillages whilst she was on duty.
After the incident the respondent had reassessed their cleaning
programme but concluded it was not necessary to increase the number
of cleaners on the walkways.
[19]
Mr
Robert Cooper, the respondent’s Western Cape General manager,
testified that he had been employed by it for 11 years and
that the
gross lettable area in the Centre was 141 000m² in extent
(excluding the internal passageways). Of that area,
approximately 19%
(approximately 27 000m²) comprised the common area of the Centre
which the respondent was required to clean.
The walkway between Pick
‘n Pay and Stuttafords where the incident occurred was
approximately 200m long, varying in width
from 10m to 12m and in some
instances 30m to 40m.
[20]
Mr
Cooper testified that it was an ‘
unwritten
rule’
in the industry that an area of 1200m² would be allocated per
cleaner as a minimum area. An assessment of the particular
environment would determine whether more or less cleaners were
required. After the incident involving the appellant the respondent
had carried out an investigation but concluded that the same cleaning
system, first instituted in 2007, should continue to be followed
at
the Centre. According to information provided by the Centre’s
owners, 21 million persons visited it in 2016. Mr Cooper
testified
that the cleaning of floors was regarded by the respondent as ‘
not
critical’
and it did not regard the prevention and cleaning of spillages as a
priority since the respondent was not ‘
an
emergency response cleaning contractor’
.
[21]
Finally,
Mr Brian Wright, an insurance loss adjustor, testified as an expert
witness for the respondent. He was requested by the
insurance
underwriters to investigate the incident and prepare a report which
he did after meeting on site with Ms Kruger and Ms
Barnard in April
2015 when he discussed the cleaning regime with them and took
photographs. Mr Wright concluded that there was
evidence to suggest
that an ice-cream was dropped on the floor in front of the Zoot shop
sometime between the last sweep and the
appellant’s arrival at
the accident scene. He concluded that the respondent was not
negligent in the execution of its duties
in providing the cleaning
service.
The
law
[22]
As
was stated in
Kruger
v Coetzee,
[1]
‘
[f]or
the purposes of liability culpa arises if -
(a)
a diligens paterfamilias in the position of the defendant –
(i)
would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps.
’
[23]
A
leading case dealing with delictual liability for the consequences of
spills in public places is
Probst
v Pick ‘n Pay Retailers (Pty) Ltd,
[2]
where Stegmann J was faced with a claim against a shopkeeper by one
of whose customers suffered damages as a result of a fall on
an oil
spillage in one of its shops. In considering what the duty of a
shopkeeper was in these circumstances, the Court reviewed
a range of
relevant authorities both local and from the United Kingdom. It held
that the shopkeeper owed a duty to persons entering
its shop to take
reasonable steps to ensure that the floor was kept in a condition
that was reasonably safe for shoppers, bearing
in mind that they
would spend much of their time in the shop with their attention
focused on goods displayed on their shelves and
not looking at the
floor to ensure that every step they took was safe. It held further
that the duty on the shopkeeper to take
such reasonable steps was not
so onerous as to require that every spillage had to be discovered and
cleaned up as soon as it occurred.
However, it did require a system
which ensured that spillages were not allowed to create potential
hazards for any material length
of time and that they would be
discovered, and the floor made safe, with ‘
reasonable
promptitude’
.
[24]
In
so holding, the learned Judge quoted with approval the following
passage from the judgment of Megaw LJ in
Ward
v Tesco Stores Ltd:
[3]
‘
It
is for the [appellant] to show that there has occurred an event which
is unusual and which, in the absence of explanation, is
more
consistent with fault on the part of the [respondents] than the
absence of fault; and to my mind the learned Judge was wholly
right
in taking that view of the presence of this slippery liquid on the
floor of the supermarket in the circumstances of this
case: that is
that the [respondents] knew or should have known that it was not an
uncommon occurrence and that if it should happen,
and should not be
promptly attended to, it created a serious risk that customers would
fall and injure themselves. When the [appellant]
has established
that, the [respondents] can still escape from liability … if
they could show that the accident must have
happened, or even on
balance of probability would have been likely to have happened,
irrespective of the existence of a proper
and adequate system, in
relation to the circumstances, to provide for the safety of
customers’
.
[25]
Stegmann
J then observed that all three members of the Court in
Ward
were of the view that the appellant had the onus of proving
negligence on the part of the respondents and that this would be
proved
if the fact was that the slippery spillage had remained on the
floor for a period longer than was reasonably necessary to discover
it and clear it up.
[4]
Where the
minority of the Court differed was over the question of whether the
appellant’s evidence that she had slipped and
fallen in a
spillage on the shop floor was sufficient in the absence of rebutting
evidence to justify the prima facie inference
that the slippery
spillage had remained on the floor longer than was reasonably
necessary to discover it and clear it up. The majority
held that such
an inference was justified but one member of the Court held that it
was not.
[5]
[26]
Commenting
on this difference of opinion Stegmann J stated as follows:
‘
There
is a sound reason of policy why the majority view should be followed:
it is that in such a case the [appellant] generally
cannot know
either how long the slippery spillage had been on the floor before it
caused his fall, or how long was reasonably necessary,
in all of the
relevant circumstances (which must usually be known to the
respondent), to discover the spillage and clear it up.
When the
[appellant] has testified to the circumstances in which he fell, and
the apparent cause of the fall, and has shown that
he was taking
proper care for his own safety, he has already done as much as it is
possible to do to prove the cause of the fall
was negligence on the
part of the [respondent] who, as a matter of law, has the duty to
take reasonable steps to keep his premises
reasonably safe at all
times when the members of the public may be using them. … It
is therefore justifiable in such a situation
to invoke the method of
reasoning known as res ipsa loquitur and in the absence of an
explanation from the respondent, to infer
prima facie that a
negligent failure on the part of respondent to perform his duty must
have been the cause of the fall’
.
[6]
[27]
The
judgment in
Probst
was referred to with approval by the Supreme Court of Appeal in
Checkers
Supermarket v Lindsay
,
[7]
another case involving a supermarket customer slipping on an oily
substance on the supermarket floor. The appellant succeeded in
the
Court
a
quo
and in dismissing the appeal, the Supreme Court of Appeal stated as
follows:
‘
The
court below reasoned amongst others that emphasis on the length of
time the spillage remained undetected, without consideration
of the
adequacy of the cleaning system, was an artificial and unrealistic
test. The court went further and reasoned that the adequacy
of the
system had to be considered against the number of cleaning staff
allocated to deal with spillages, the floor area and number
of
shopping aisles’.
[8]
[28]
Chartaprops
16 (Pty) Ltd & Another v Silberman
[9]
concerned,
as does the present case, the consequences of a failure to clean a
slippery substance in a passage in a shopping mall.
The complaint was
the same as that in the present matter, namely, that the respondent
negligently omitted to detect and remove
the hazard and was thus
liable for the consequences for the omission. In
Chartaprops,
the owner of the shopping centre and not its contracted cleaner was
sued. Nonetheless, the Court’s remarks about the adequacy
of
the cleaning system implemented by the cleaning company are relevant:
‘
Advanced
Cleaning had a system in place for cleaning the floors, the details
of which are not important. It is sufficient to say
that every part
of the floor should ordinarily have been passed over by one or other
of the cleaners in the employ of Advanced
Cleaning at intervals of no
more than five minutes. I think it is clear that the system,
if
it was adhered to
,
was adequate to keep the floors in a reasonably safe condition. It is
also not disputed that Chartaprops itself kept a regular
check on the
contractor’s performance. Its centre manager consulted each
morning with the cleaning supervisor and personally
inspected the
floors of the shopping mall daily to ensure that they had been
properly cleaned. If he encountered litter or a spillage
he would
arrange for its immediate removal’.
[10]
[29]
The
Court
a
quo
had held that the owner and the contracted cleaner were jointly and
severally liable to the appellant. On appeal, the Supreme Court
of
Appeal found that by engaging a competent contractor, the first
appellant (the owner) took the care which was incumbent on it
to make
the premises reasonably safe. There was no way for the first
appellant to have known that the work of the second appellant
(the
cleaner) would be defective. It held that the first appellant had
therefore not been negligent and that the damage complained
of was
caused solely by the negligent act or omission of the second
appellant, accordingly finding that the first appellant was
not
liable but the finding in relation to the second appellant (the
cleaner) could not be faulted.
[11]
The
issues
[30]
Against
this background the issues on appeal are reflected in the three main
grounds of appeal and accordingly I turn to the first,
namely,
whether the Court
a
quo
erred in finding that the appellant had failed to prove that she
slipped on the liquid substance on the walkway.
[31]
In
making this finding the Court
a
quo
reasoned that there was no direct evidence before it that the
appellant had slipped and fallen on what had been admitted by the
respondent as being a liquid substance on the floor of the mall in
the vicinity of where she fell. In this regard it is important
to
note that in response to the appellant’s request for trial
particulars the respondent admitted that ‘
a
liquid substance was on the floor of the mall in the vicinity of
where appellant fell’
.
It also admitted that ‘
it
was obliged to take reasonable steps to protect the safety of members
of the public, such as [appellant], by, inter alia, ensuring
the
floor of the said premises was clean and free of any spillage’
.
The Court
a
quo
reasoned that there was no direct evidence before it that it was on
this substance that the appellant slipped and fell and that
an
inference to this effect was not more likely than not given that
people may slip and fall for a range of reasons including negligence,
inadvertence or oversight on their part. In the present
circumstances, it reasoned further, that given that 25 people had
walked
across the same area in the two minutes preceding the
accident, all without mishap, that the appellant wore plastic Croc
shoes,
that she had walked fast and that she had had prior surgeries
to her knee and back, the inference sought to be drawn could not be
made.
[32]
In
my view none of the reasons provided by the Court
a
quo
,
either singly or cumulatively, justify the finding that the inference
sought could not be drawn. The fact that the appellant wore
a
particular make of shoe and walked fast is neither here nor there.
Similarly, the fact that 25 other people who walked past the
same
area did not slip and fall takes the matter no further. Each one of
them may have avoided putting his or her foot on the liquid
substance. Nor is there is any evidence that in walking in the manner
that she did or wearing the footwear which she did, the appellant
was
not acting reasonably or safely. The suggestion that it was equally
probable that she could have fallen because of a pre-existing
disability is similarly not borne out by the evidence. There was
nothing in the evidence to suggest that the appellant would suddenly
slip and fall for no apparent reason. Her evidence is what one might
expect of many in the appellant’s situation, namely,
that she
suddenly fell and that in the condition in which she found herself
i.e. in extreme pain, she paid no attention to trying
to ascertain
there and then what had caused her to slip. The Court appeared also
to have erred in finding that apart from the fact
that it was a
liquid substance, no further details as to the nature or extent of
the spillage were proved. Although the evidence
as to the nature and
extent of the spillage was indirect or of a hearsay nature there was
in my view more than sufficient to indicate
the size of the spillage
and that it comprised of spilt ice-cream. In the report of the
investigation into the incident, the Security
Manager of the Centre,
a Mr Jan Dreyer, recorded that a security officer had reported
that the appellant slipped on ‘
spilled
ice cream’
,
that the spillage ‘
appeared
to be a brown mixture of approximately 5cm long, and … was
lying on a brown spotted (similar colour as spillage)
floor tile …
’.
In two further written incident reports it was recorded that
the appellant fell ‘
on
a slippery ice cream floor’
and on ‘
an
ice-cream on the floor in front of Zoot’
.
[33]
For
the purposes of his report, Mr Wright, the respondent’s loss
adjustor, accepted that the appellant slipped on what appears
to have
been ice cream dropped on the walkway floor. He also recorded that
Mrs Barnard (the respondent’s supervisor on the
day in
question) had received a call from security advising that there was
‘
ice-cream’
on the floor outside Zoot and that a customer had slipped and fallen.
Subsequent to the incident the appellant herself had observed
two
separate spillages of ice-cream at the Centre.
[34]
Taking
all this into account, I regard it as highly improbable that
notwithstanding the presence of an ice-cream spill outside the
Zoot
shop, the appellant slipped and fell at that location on that
occasion for an unrelated reason.
[35]
Having
found that the ice-cream spillage was the cause of the appellant
slipping and falling, the issue which now arises is whether
the
respondent had in place an appropriate and adequate cleaning regime
with the result that, notwithstanding that it did not detect
and
clear the spillage, it was not negligent in failing to do so.
[36]
This
question was considered by the Court
a
quo
which reasoned that even if a significantly greater number of
cleaners was employed to clean the walkways, this would not reduce
the number of spillages, nor necessarily allow for quicker detection
of spills. The Court
a
quo
noted that the cleaner was on duty in the walkway on the day of the
appellant’s fall and had recently passed by the area
in which
she fell. It found further that the evidence supported a conclusion
that the respondent had in place an adequate cleaning
regime, that it
adhered to that regime, that it foresaw that harm might arise were a
spillage not to be identified and cleaned
but that it enforced a
regime which included the implementation of a protocol on spillages
to minimise the risk of such harm arising.
In the circumstances, the
Court concluded that the respondent had taken reasonable steps to
guard against, and act upon, spillages.
[37]
In
my view, however, the respondent’s own evidence suggests that
its managers had failed to appreciate the implications of
its
responsibilities in regard to the hazards of spillages. Mr Cooper
testified as follows in his evidence in chief:
‘
Now
do you take safety, and in particular the danger of spills, and slips
as a result of spills, into account when doing your planning?
--- Not
slip and falls particularly. Remember, we’re a maintenance
cleaning contractor, we’re not an emergency response
cleaning
contractor’.
[38]
In
cross-examination he reinforced this evidence as will be seen from
the following passage:
‘
But
you said in your evidence you don’t really apply your –
or gear your cleaning regime to deal with this kind of situation,
because you’re not what – I think you said you’re
not an emergency service, or you don’t really regard
yourself
as having to guard against those sort of accidents. … Routine
maintenance cleaning. Correct.
But
surely this is an error? --- No, it is not.
And
therefore you don’t believe that it’s worthwhile putting
another cleaner on duty on those walkways? --- I never
said that, and
I am not saying that.
So
you think there should be a second cleaner on duty on the walkways …
(intervention) --- From a cleaning regimen point
of view, there is
sufficient cleaning staff on site, and there have been for the last
10 years’.
[39]
In
re-examination Mr Cooper testified that although additional cleaning
staff were employed in critical areas such as bathrooms
during peak
times, walkways were not regarded as critical areas.
[40]
Bearing
in mind the dictum in
Checkers
Supermarkets
that the adequacy of a cleaning system had to be considered against
the number of cleaning staff allocated to deal with spillages,
the
floor area and the number of shopping aisles, the question of the
scope of duties of the sole cleaner on duty in the specific
walkway
was clearly of cardinal importance. To these factors can also be
added the heaviness of the traffic along the walkway or
the
‘
footfall’
as it was referred to in evidence. Ms Kruger, who designed the
cleaning programme and testified in regard to these matters, had
no
knowledge and appeared to have taken little account of the footfall
or the physical area covered by the cleaner on duty. Ms
Kruger was
unable to even give an indication of what the foot count at Canal
Walk was beyond stating that it was comparable to
that at the V&A
Waterfront. Nor had she calculated the size of the common areas which
had to be cleaned, and in particular
the walkways, despite having
allegedly taken the area into account in devising the cleaning
regime.
[41]
Evidence
from other quarters was that the traffic along the walkway in
question was heavy. Based upon the evidence that 21 million
customers
visited the Centre in 2016, on the assumption that an equal number of
persons visited the Centre daily this would amount
to an average of
at least 57 000 visitors per day. Adjusting this for heavier
traffic on weekends and the fact that the incident
took place in
2012, a rough estimate of daily traffic during the weekdays would
surely be at least 25 000 visitors per day.
The busyness of the
traffic on the walkways was borne out by the CCTV footage of the
incident which revealed that in less than
two minutes immediately
before the incident in question, 22 persons crossed the area in front
of Zoot where the appellant slipped
and fell and another three
entered or exited that shop. Extrapolating this would see
approximately 660 people moving past that
point in an hour or 330 in
half an hour.
[42]
As
far as the total area of the walkway is concerned, at an average
width of 12m, itself probably an underestimate given that at
times
the width increased to 40m, this makes for a total area of some
2400m² which is double the minimum area a cleaner must
clean in
terms of industry standards. Also of relevance to the adequacy of the
cleaning regime was the fact that the Service Level
Agreement
provided for a maximum of 12 cleaning staff to be allocated to the
walkways yet only eight were allocated at the time
of the incident
i.e. one per quarter. Mr Cooper conceded that employing extra
cleaners in the walkways would be affordable and
minimise spillages
and possible accidents involving members of the public:
‘
So
to employ an extra cleaner on every walkway, it would only be four
extra cleaners, it would not be a vast amount of expenditure,
would
it? --- Probably not, no.
And
it would, one must obviously logically accept, improve the
cleanliness and probably reduce the chances of spillages not being
detected and people unfortunately slipping --- I agree’.
[43]
Evidence
of the minimum wage paid to cleaners by the respondent underlines
that the cost of allocating two cleaners per walkway
rather than one
would have had very little impact upon the Centre’s cleaning
budget.
[44]
An
important fact in the evaluation of the adequacy of the cleaning
regime is how long it would take for a spill to be detected.
The
appellant submitted that a full cleaning cycle i.e. from Stuttafords
to Pick ‘n Pay and back took between 30 and 40 minutes,
from
basing this on the observations which its expert witness made several
years after the incident. Respondent’s counsel
submitted that
the cleaner on duty would take approximately 30 minutes to complete a
cleaning cycle. In my view the estimate of
30 to 40 minutes appears
realistic particularly in view of the fact that the evidence
suggested that the cleaner followed a circular
cleaning route i.e.
first cleaning one side of the walkway and, upon reaching the end,
proceeding down the other side of the walkway.
[45]
In
her heads of argument, respondent’s counsel herself described
the cleaning regime as involving the cleaner moving ‘
methodically’
in a circle although she later sought to distance herself from this
proposition and to suggest that the cleaner cleaned the entire
width
of the corridor on every pass. Given the width of the walkway, some
12m to 20m and at times reaching 40m, it would seem more
likely that
Mr De Meillon’s observation was correct and that the cleaner
would clean one side on one pass and then the other
side of the
walkway on the next pass. This appears to have been accepted by the
respondent in evidence as appears from the following
passage from Mr
De Meillon’s cross examination:
‘
---
That is correct. She works the one side at a time. So if, for
arguments sake the walkway is 12m, she [does] 6m at a time.
And
that would be the 6m closest to Zoot, because you said she went down
the left hand side. --- that is correct, M’Lady.’
[46]
Of
course, the significance of this evidence is that a spillage could
remain undetected on the floor of the walkway for a period
of up to
40 minutes. This is based on the assumption that any such spillage is
not detected or reported by a member of the public,
shop staff,
security staff or another one of the respondent’s cleaners or a
supervisor passing by. Although there was evidence
that supervisors
do spot checks on the cleaning staff and it can also be accepted that
spills will on occasion be detected and
reported by persons other
than the cleaner on duty in the walkway, this does not strike me as a
factor upon which the respondent
can place great reliance for the
adequacy of its cleaning regime. A spill might be some distance from
a shop and not be noted by
staff whilst cleaners, other than the one
on duty in that walkway, and security staff for that matter, might
simply not happen
to pass by or even detect the spillage in the
walkway. This would appear to have been the case when the incident in
question took
place. What is more if the spillage is not large or
clearly visible it might remain undetected by anyone except the
cleaner specifically
tasked with cleaning that walkway. In the
present matter the spill appeared to be small, some 5cm in length and
of a brownish colour
with the result that it was not clearly
distinguishable against the similarly coloured tiles on the floor.
[47]
Ultimately,
therefore, an important fact in evaluating the adequacy of the
respondent’s cleaning regime must be the time it
might take for
the cleaner on duty to detect a spillage. In my view, a period of up
to 40 minutes is too long to leave a hazard
in a walkway which is as
busy as the one at the Centre and where spillages appear to be a
regular occurrence. In argument, the
respondent’s counsel
pointed out that, as far as possible, visitors from the Centre were
dissuaded from consuming food other
than at the food court where the
48 restaurants and outlets were situated. Experience seems to have
shown however that some visitors
are either unaware of these
strictures or ignore them. A case in point appears to be spillages
caused by ice-creams which, in the
nature of thing, are often not
consumed at the point of purchase but by customers on the move
through the Centre.
[48]
In
regard to the adequacy of the cleaning regime, respondent’s
counsel, Ms Harvey, argued that the Court should defer to the
experience and expertise of the respondent’s managers whose
view it was that one cleaner per walkway was sufficient. She
also
emphasised that following the incident the cleaning regime had been
reassessed and found not to be wanting. However, without
any evidence
or explanation of how the conclusion was reached that the cleaning
regime was adequate, this reassessment process
can carry no weight.
[49]
Ms
Harvey also argued that if the Court were to find that two cleaners
were necessary for a walkway it would in effect be legislating
for
the entire cleaning industry across the country. I do not accept this
proposition either. A finding that for the cleaning system
in
question to be adequate at least one further cleaner would have been
necessary per walkway is specific to the facts of this
case with
regard to the foot fall, the length and width of the walkway, the
time that the cleaner took to complete a cleaning cycle
of the
walkway and taking into account all the duties she had to perform on
each cycle. It also takes into account the possibility
of spillages
inter
alia
involving food and ice-cream at the Centre in question. All these
factors will differ from one shopping centre or public space
to
another. For example, in a similar scenario the evidence might be
that a security guard constantly patrols up and down a walkway
armed
with a radio and would notice a spillage within five or ten minutes.
[50]
For
these reasons, I consider that the Court
a
quo
erred and misdirected itself in concluding that the respondent had in
place an appropriate cleaning regime. To reiterate, the main
factors
which drive me to this conclusion are the considerable size of the
Centre and in particular its common area, the heavy
traffic on the
walkways of the many visitors to the Centre, the size of the walkway
allocated to only one cleaner, the comparatively
lengthy period of
time for which a spill may remain undetected (up to 40 minutes), the
large number of restaurants and food outlets
in the mall and the
regular spillages. The evidence also revealed a failure on the part
of the respondent’s management in
devising an adequate cleaning
programme to take into account the heavy traffic/footfall and the
large area involved as well as
a failure to appreciate the
implications of the admitted duty of the respondent to take
reasonable steps to protect the safety
of members of the public by
ensuring that the floor was clean and free of any spillages.
[51]
The
final leg of the appellant’s argument was that even if the
respondent’s cleaning regime was appropriate and adequate,
it
had failed to prove that it was adhered to on the day in question.
This argument was based on what was contended was a lack
of any
evidence to the effect that the cleaner on duty in the walkway in
question that day had actually performed his/her duties
diligently.
In the light of the finding that the cleaning regime was not adequate
and in the absence of any evidence that, notwithstanding
the
inadequacy of the cleaning regime, a cleaner had passed by the area
in question a few minutes before the appellant slipped
and fell, it
is in my view not strictly necessary to consider this leg of the
appellant’s argument.
[52]
However,
I do note that neither of the cleaners on duty nor their supervisor
on the day testified in the trial although one such
cleaner and the
supervisor were presumably available to do so. Nor do I consider that
any reliance can be placed on Mr Wright’s
reconstruction, two
years after the event, of the cleaners’ cycle on the day in
question which he utilised to suggest that
the cleaner on duty must
have passed the area in front of Zoot some 10 to 15 minutes before
the incident occurred. There are simply
too many unfounded
assumptions built into the reconstruction to make it reliable. On
wonders also why the respondent did not follow
its own protocols
after the incident and ascertain from the cleaner on duty and record
in a report, when she had last cleaned the
spot where the incident
took place.
[53]
In
the result for these reasons I consider that the appeal must succeed
and the following order is made:
1.
The
appeal is upheld with costs including the costs involved in the
application for leave to appeal;
2.
The
order made by the Court
a
quo
is set aside and replaced with the following:
‘
1.
The respondent is declared liable for such damages as the appellant
can prove arising out of the incident which occurred on 12
January
2012 at the Canal Walk Shopping Centre when the appellant slipped and
fell;
2.
The respondent is to pay the appellant’s costs in the trial
including the qualifying expenses of Mr De Meillon’
____________________
BOZALEK
J
I
agree.
____________________
FORTUIN
J
I
agree.
____________________
NUKU
J
For
the Appellant: Adv PA Corbett (SC)
As
Instructed by: Malcolm Lyons & Brivik Inc
For
the Respondent: Adv S Harvey
As
Instructed by: MacGregor Erasmus Attorneys
[1]
1966 (2) SA
428
(A) at 430E-G.
[2]
[1998] 2 All SA 186 (W).
[3]
[1976] 1 All ER 219
(CA) at
224A–C (quoted
ibid
at 197).
[4]
Probst
above
at 197.
[5]
Ibid
.
[6]
Ibid
.
[7]
2009 (4) SA 459 (SCA).
[8]
Ibid
at
para 8.
[9]
[2008] ZASCA 115
;
2009 (1) SA 265
(SCA).
[10]
Ibid
at para 3 [my underlining].
[11]
Ibid
at
para 48.